Police use of court alternatives for young persons in New South Wales

from the study by Clare Ringland and Nadine Smith in Crime and Justice Bulletin

Through the use of warnings, cautions and conferences instead of court proceedings, the YOA established procedures for dealing efficiently and directly with children who commit certain offences. Previously reported statistics (DAGJ, 2011) suggested that diversionary options for young persons have not been used uniformly and equitably across the State. The purpose of the current study was to measure the level of variation across LACs in the proportion of young persons diverted from court, after adjusting for factors police must or can take into account when considering whether to deal with a young person via a caution or a conference.

After applying eligibility criteria in line with the YOA, it was found that diversionary options (cautions and conferences) were used by police in almost 80 per cent of cases. While the rate of diversion per LAC was as low as 30 per cent, 85 per cent of LACs diverted at least 70 per cent of their eligible cases.

After controlling for other factors, the following characteristics were found to be associated with a decreased likelihood of diversion: being older at the time of referral; being male; identifying as Indigenous; having more charges; having a current or previous charge for a serious violent offence; and having prior cautions, conferences, court finalisations and control orders.

These findings are largely consistent with the YOA which states that the seriousness of the offence, the degree of violence, the number and nature of any offences committed by the young person and the number of times the young person has been dealt with under the Act, should be considered when deciding whether a caution or a conference is an appropriate way of proceeding.

However, while the YOA does not explicitly state that age, sex, or Indigenous status should be considered when deciding whether or not to divert a young person, findings from this study suggest that police take these factors into account. Whether or not these effects are persistent across LACs, or stronger in some LACs than others, is beyond the scope of this study, but should be investigated in future research.

A principle of the YOA is that the over-representation of Aboriginal and Torres Strait Islander children in the criminal justice system should be addressed by the use of warnings, cautions and conferences. It is of concern to find that, compared with non-Indigenous young persons, Indigenous young persons were less likely to be diverted away from the court by police, even after adjusting for factors such as prior cautions, conferences and court appearances.

The reason that Indigenous young persons are less likely than non-Indigenous persons to be diverted by police could be related to factors unaccounted for in this study, such as legal representation and the timing of the admission of guilt. Further investigation is needed to gain an understanding of this finding.